govinfo:USCOURTS-wvnd-1_17-cv-00088-1

IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
JACKLIN ROMEO,
Individually and on behalf
of others similarly situated; 
SUSAN S. RINE,
Individually and on behalf
of others similarly situated; 
DEBRA SNYDER MILLER,
Individually and on behalf
of others similarly situated, 
Plaintiffs,
v.      CIVIL ACTION NO. 1:17CV88
      (Judge Keeley)
ANTERO RESOURCES CORP.,
Defendant.
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
In this breach of contract case, the plaintiffs, Jacklin Romeo
(“Romeo”), Susan S. Rine (“Rine”), and Debra Snyder Miller
(“Miller”) (collectively, “the Plaintiffs”), individually and on
behalf of others similarly situated, allege that the defendant,
Antero Resources Corporation (“Antero”), breached its obligations
under the royalty provisions of two types of lease agreements by
improperly deducting post-production costs and failing to pay
royalties based upon the price received at the point of sale (Dkt.
No. 31). The Plaintiffs moved to certify this case as a class
action pursuant to Federal Rule of Civil Procedure 23(b)(3) (Dkt.
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ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
No. 100), which Antero opposes. Antero also moved to exclude expert
witnesses and to strike certain declarations and exhibits filed by
the Plaintiffs in support of their motion for class certification
(Dkt. No. 142). 
After careful review, and for the reasons that follow, the
Court DENIES Antero’s motions to exclude (Dkt. Nos. 96, 97), DENIES
Antero’s motion to strike (Dkt. No. 142), and GRANTS the
Plaintiff’s motion for class certification (Dkt. No. 100). The
Court further DEFINES the certified class, APPOINTS class
representatives and counsel, DIRECTS class counsel to submit a
proposed Notice of Certification, and SCHEDULES a status
conference.
I. BACKGROUND
A. Factual Background 1
Romeo is the assignee of a portion of the lessors’ interest
under a March 14, 1984 lease agreement between lessors Jessie J.
1 The Court takes these facts from the second amended
complaint and construes them in the light most favorable to the
Plaintiffs. See
 De’Lonta v. Johnson, 708 F.3d 520, 524 (4th Cir.
2013).
2
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ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
Nixon, Betty Nixon, Mary Alice Vincent, and Hubert L. Vincent, and
lessee Clarence W. Mutschelknaus (“the Mutschelknaus Lease”).
Antero acquired the lessee’s rights and obligations sometime prior
to January 1, 2009 (Dkt. No. 31 at 6). The royalty provision of the
Mutschelknaus Lease, which is attached to the second amended
complaint, contains the following language:
In consideration of the premises, the said
[Lessee] covenants and agrees: First, to
deliver monthly to the credit of the Lessors,
their heirs or assigns, free of costs, in a
pipeline, to which Lessee may connect its
wells, Lessors’ proportionate share of the
equal one-eighth (1/8) part of all oil
produced and saved from the leased premises;
and second, to pay monthly Lessor’s
proportionate share of the one-eighth (1/8) of
the value at the well of the gas from each and
every gas well drilled on said premises, the
product from which is marketed and used off
the premises, said gas to be measured at a
meter set on the farm, and to pay monthly
Lessors’ proportionate share of the one-eighth
(1/8) of the net value at the factory of the
gasoline and other gasoline products
manufactured from casinghead gas.
Id.
 at 6.
Rine and Miller are assignees of portions of the lessors’
interest under an October 19, 1979 lease between lessors Lee H.
3
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ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
Snyder, and Olive W. Snyder, and lessee Robert L. Matthey, Jr.
(“the Matthey Lease”). Id. at 6-7. Ultimately, Matthey’s interest
in the lease was assigned to Antero sometime prior to July 17,
2012. Id.
 at 7-8. The royalty provision of the Matthey Lease, which
is also attached to the second amended complaint, contains the
following language:
(a) Lessee covenants and agrees to deliver to
the credit of the Lessor, his heirs or
assigns, free of cost, in the pipe line to
which said Lessee may connect its wells, a
royalty of one-eighth (1/8) of native oil
produced and saved from the leased premises.
(b) Lessee covenants and agrees to pay Lessor
as royalty for the native gas from each and
every well drilled on said premises producing
native gas, an amount equal to one-eighth
(1/8) of the gross proceeds received from the
sale of the same at the prevailing price for
gas sold at the well, for all native gas saved
and marketed from the said premises, payable
quarterly.
Id.
 at 8-9.
According to the Plaintiffs, gas produced under the agreements
consists of “wet gas” saturated with liquid hydrocarbons and water
that must be treated and processed to obtain marketable “residue
gas.” Likewise, the gas contains valuable liquid hydrocarbon
4
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ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
components that must be extracted and fractionated prior to sale.
Id. at 9-10.
Because neither royalty provision at issue expressly permits
the deduction of post-production costs, the Plaintiffs contend that
West Virginia law imposes a duty on Antero to calculate royalties
based on the price it receives from third parties for the residue
gas and natural gas liquids (“NGLs”) without deductions. The
Plaintiffs further allege that, despite this duty, Antero has
failed to pay a full 1/8th royalty on the sale price for residue
gas and NGLs, and instead have been deducting various
post-production costs. Id.
 at 11-13.
B. Procedural History
After the Court denied Antero’s motion to dismiss the second
amended complaint, it limited the first phase of discovery to class
certification. In July 2019, Antero filed motions to exclude the
expert testimony of Daniel T. Reineke, P.E. (“Reineke”), and Donald
A. Phend, C.P.A. (“Phend”). After the Plaintiffs moved to certify
this case as a class action in August 2019, the Court held a
hearing on the motions to exclude on September 27, 2019, and on the
5
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ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
motion for class certification on October 15, 2019, following which
it ordered supplemental briefing on various issues. Antero then
moved to strike certain declarations and exhibits filed by the
Plaintiffs in support of their motion for class certification. 
II. DISCUSSION
The Court turns first to Antero’s motions to exclude and
strike various testimony and evidence.
A. Motions to Exclude
Pursuant to Federal Rule of Evidence 702, Antero moves to
exclude Reineke and Phend because their expert testimony “do[es]
not help the trier of fact to understand the evidence or to
determine a fact at issue, are not based on sufficient facts or
data, and are not the product of reliable principles and methods
reliably applied to the facts of this action” (Dkt. Nos. 96 at 1,
97 at 1). This is so, Antero insists, because their opinions are
not based on the language of the leases in question, but assert
numerous false premises or speculation, offer impermissible legal
conclusions, or are contrary to the facts of this case (Dkt. Nos.
96, 97). Antero’s motions amount to little more than a veiled
6
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ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
attempt to defeat class certification.
i. Applicable Law
Rule 702 governs the admissibility of expert witness
testimony. An expert must be “qualified . . . by knowledge, skill,
experience, training, or education.” Fed. R. Evid. 702. “In
assessing a proffered expert’s qualifications, the district court
must consider the proposed expert’s full range of experience and
training, not just his professional qualifications.” Good v. Am.
Water Works Co., Inc. , 310 F.R.D. 274, 282 (S.D. W. Va. 2015)
(cleaned up) (citations omitted). “While relevant qualifications
are crucial, an expert need not be precisely informed about all
details of the issues raised in order to offer an opinion.” Id.
(internal quotations and citation omitted).
“Once qualified, an expert’s testimony is admissible if it
will assist the trier of fact and is (1) ‘based on sufficient facts
or data,’ (2) ‘the product of reliable principles and methods,’ and
(3) ‘the principles and methods [have been applied] reliably to the
facts of the case.’” Id.
 (quoting Fed. R. Evid. 702).
“Admissibility of such testimony is governed by a two-part test:
7
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ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
the evidence is admitted if ‘it rests on a reliable foundation and
is relevant.’” Id. (quoting Daubert v. Merrell Dow Pharm., 509 U.S.
579, 597 (1993)). Relevance and reliability are guided by, among
other things:
(1) whether the particular scientific theory
“can be (and has been) tested”; (2) whether
the theory “has been subjected to peer review
and publication”; (3) the “known or potential
rate of error”; (4) the “existence and
maintenance of standards controlling the
technique’s operation”; and (5) whether the
technique has achieved “general acceptance” in
the relevant scientific or expert community.
United States v. Crisp
, 324 F.3d 261, 266 (4th Cir. 2003) (quoting
Daubert, 509 U.S. at 593–94).
“The court need not, however, consider all of the factors in
lockstep fashion.” Good, 310 F.R.D. at 282. “Neither Rule 702 nor
case law establish a mechanistic test for determining the
reliability of an expert’s proffered testimony.” Id.
 Rather, “‘the
test of reliability is flexible’ and ‘the law grants a district
court the same broad latitude when it decides how to determine
reliability as it enjoys in respect to its ultimate reliability
determination.’” United States v. Wilson
, 484 F.3d 267, 274 (4th
8
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ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
Cir. 2007) (quoting Kumho Tire Co. v. Carmichael , 526 U.S. 137,
141-42 (1999)).
“The gatekeeping role exercised by the district court is a
critical one.” Good , 310 F.R.D. at 283. “Inasmuch as expert
witnesses have the potential to be both powerful and quite
misleading, the court must ensure that any and all scientific
testimony is not only relevant, but reliable.” Id.
 (cleaned up)
(citations omitted). But the “inquiry to be undertaken by the
district court is ‘a flexible one’ focusing on the ‘principles and
methodology’ employed by the expert, not on the conclusions
reached.” Westberry v. Gislaved Gummi AB
, 178 F.3d 257, 261 (4th
Cir. 1999) (quoting Daubert, 509 U.S. at 594–95). “The court is not
obliged to determine that the proffered expert testimony is
irrefutable or certainly correct——as with all other admissible
evidence, expert testimony is subject to testing by vigorous
cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof.” Good
, 310 F.R.D. at 283
(cleaned up) (citations omitted).
9
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ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
ii. Daniel T. Reineke, P.E.
Antero seeks to exclude Reineke’s proposed expert testimony
for a litany of reasons. In particular, it emphasizes that Reineke
never reviewed the leases or modifications that are the subject of
this litigation, and that his report is based on no more than one
common question of law or fact derived from the second amended
complaint (Dkt. Nos. 96, 96-1 at 4, 8-9). These arguments are
unavailing.
For example, Antero’s argument emphasizes how fact intensive
its royalty calculations are. It notes that its gas is sometimes
unprocessed, sold at different points of sale, and its post-
production expenses are sometimes deducted from royalties,
depending on a variety of circumstances that could vary from month
to month (Dkt. No. 96-1 at 11-19). While these facts are important
to whether this case should be certified as a class action, they do
not compel Reineke’s exclusion at this stage of the litigation.
This is especially so because the Court need not rely on Reineke’s
testimony when addressing the question of class certification.
Accordingly, the Court denies Antero’s motion to exclude Reineke
10
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ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
(Dkt. No. 96).2
iii. Donald A. Phend, C.P.A.
Similarly, in attempting to exclude Phend’s proposed expert
testimony, Antero recycles many of its earlier arguments, making
much of the fact that Phend was not asked to opine on the leases
and modifications in question, and that his testimony is based not
on facts but rather allegations contained in the second amended
complaint (Dkt. No. 97-1 at 8-12).
Antero further complains that Phend’s expert opinion
constitutes inadmissible legal opinion because it merely reiterates
the Plaintiffs’ theory of the case. Id.
 at 12. Next, it insists
that Phend’s opinion “that a common method was used to pay all
putative class members is not based on sufficient facts or data.”
Id.
 This is so, Antero argues, because its royalty calculations
depend on numerous factors, including whether the gas is processed
or unprocessed, where it is sold, and a variety of other factors
2 In denying this motion, the Court takes no position on the
ultimate admissibility of Reineke’s expert testimony. 
11
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ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
that vary from well to well and month to month.3 Id. at 12-23. 
These arguments lack merit. In practical effect, Phend is a
damages expert. For him to testify about damages, it matters not
whether he has reviewed the leases or has assumed Antero has the
legal obligation the Plaintiffs have alleged.
4 Indeed, Phend is an
expert in oil and gas industry accounting, not interpreting the
language in oil and gas leases. While the Court in due course will
address the questions of law vigorously contested by Antero, it
3 Antero also contends that the Court should exclude Phend’s
testimony because his expert report and his supplemental and
rebuttal expert report are not sworn or signed under penalty of
perjury, and his supplemental report is improper rebuttal (Dkt. No.
111 at 13). The Court views this argument as waived, however,
because Antero failed to raise it in its opening brief. Mew
Sporting Goods, LLC v. Johansen, 992 F. Supp. 2d 665, 671 n.2 (N.D.
W. Va. 2014). And even if not waived, failure to sign an expert
report alone does not warrant exclusion. See, e.g.
, Ind. Ins. Co.
v. Hussey Seating Co. , 176 F.R.D. 291, 294 (S.D. Ind. 1997)
(finding expert’s technical violation of Rule 26(a)(2)(B) by
failing to sign expert report was harmless). Moreover, as explained
below, because the Court will not consider Phend’s testimony for
purposes of class certification, it need not consider whether his
rebuttal report was improper.
4 Although Phend does not have the necessary information to
calculate damages (which is not surprising given that discovery,
thus far, has been limited to class certification), as Antero
itself recognizes “an estimate of potential damages is not relevant
at the class certification stage” (Dkt. No. 111 at 12).
12
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ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
need not consider Phend’s proposed expert testimony to rule on the
Plaintiffs’ motion for class certification. It therefore denies
Antero’s motion to exclude Phend (Dkt. No. 97).
5
B. Motion to Strike
Antero also moves to strike certain declarations and exhibits
attached to the Plaintiffs’ motion for class certification (Dkt.
No. 142). It first moves to strike two paragraphs contained in the
declaration of attorney George A. Barton (“Barton”), arguing the
declaration contains improper legal conclusions and violates the
“witness-advocate rule.” Id.
 at 1-3. It further moves to strike the
declaration of attorney Taylor P. Foye (“Foye”) for the same
reasons, and also because it first appeared as an attachment to the
Plaintiffs’ reply brief. Id.
 Finally, Antero seeks to strike
Exhibit 3 because it contains improper legal conclusions, and
Exhibits 7, 8, 22, and 23 because they lack a proper foundation and
are unreliable. Id.
Antero’s motion to strike fails for two reasons. In the first
5 Again, in denying this motion, the Court takes no position
on the ultimate admissibility of Phend’s expert testimony.
13
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ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
place, it is untimely under the Scheduling Order. Cf. Fed. R. Evid.
103(a)(1)(A) (requiring a party to “timely . . . move[] to strike”
evidence to preserve appellate review (emphasis added)). Indeed,
although the declarations and exhibits Antero seeks to strike were
filed on August 2, 2019 (Dkt. Nos. 100, 101), Antero inexplicably
failed to move to strike them until November 18, 2019 (Dkt. No.
142). Cf.
 Spivey v. United States, 912 F.2d 80, 85 (4th Cir. 1990)
(concluding motion to strike affidavits was timely under Rule
103(a)(1)(A) when it was filed only nine days after they were
offered into evidence). Notably, this was over a month after the
Court’s class certification hearing on October 15, 2019 (Dkt. No.
134). See also
 id. In the second place, Antero’s motion is plainly
beyond the scope of the Court’s October 28, 2019 Order, which
directed the parties to submit memoranda of law addressing three
distinct questions, none of which bears a relationship to the
factual or legal basis for the motion to strike (Dkt. No. 141).
And even if timely filed, Antero’s motion lacks merit.
Although the Federal Rules of Civil Procedure do not provide
criteria for the admissibility of affidavits or declarations used
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ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
to address questions of class certification, personal knowledge is
important to the requisite analysis. See Soutter v. Equifax Info.
Servs. LLC, 299 F.R.D. 126, 129-131 (E.D. Va. 2014) (discussing why
evidence used at the class certification stage must be based on
personal knowledge). Additionally, courts have consistently
distinguished between testimony requiring “specialized knowledge”
within the purview of Rule 702, and “particularized knowledge that
the witness ha[s] by virtue of his position,” which is a
permissible foundation for lay witness testimony. Henderson v.
Corelogic Nat’l Background Data, LLC, No. 3:12CV97, 2016 WL 354751,
at *2-3 (E.D. Va. Jan. 27, 2016) (citing United States v. Chapman,
209 F. App’x. 253, 265 (4th Cir. 2006)) (explaining that a witness
who does nothing more than review and summarize data is not an
expert).
Here, neither attorney declaration falls within the purview of
expert testimony. Each merely identify and explain certain
information about which Barton and Foye have personal knowledge
based on their legal experience and review of the discovery in the
case. Such information is relevant to the class certification
15
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ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
questions of numerosity, commonality, predominance, and adequacy of
representation.
Nor does the witness-advocate rule prohibit consideration of
these attorney declarations. In Spivey v. United States, 912 F.2d
80, 84 (4th Cir. 1990), the Fourth Circuit upheld a decision to
strike an attorney affidavit submitted post trial to resolve a
factual dispute. There, our circuit court explained that the
factual dispute at issue “should not have been resolved by
affidavits in any case, and the submission of a post-trial
affidavit to counter defendants’ pre-trial motion in limine was
clearly not authorized by [Federal] Rule [of Evidence] 43(e).” The
court also explained that, “by offering his affidavit on a factual
issue, [the attorney] acted as a witness,” violating the
“elementary [rule] that counsel may not participate both as an
advocate and as a witness . . . .” Id.
Here, Barton and Foye’s affidavits were not submitted post
trial or to resolve a factual dispute, but rather to identify and
explain information relevant to the elements of numerosity,
commonality, predominance, and adequacy of representation. Nor does
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ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
the holding in International Woodworkers for America v. Chesapeake
Bay Plywood Corp. , 659 F.2d 1259 (4th Cir. 1981), compel a
different conclusion. The issue in that case was not whether to
strike an attorney’s declaration, but rather whether the district
court properly disqualified an attorney as a Rule 30(b)(6) witness
on behalf of his client. Id.
 at 1272-73. 
Unlike the testimony of a Rule 30(b)(6) witness, a declaration
is not the testimony of a party. Instead, it “‘reflects . . . the
personal knowledge of the declarant.’” Soutter v. Equifax Info.
Servs. LLC, 299 F.R.D. 126, 132 (E.D. Va. 2014) (emphasis omitted)
(citation omitted) (distinguishing between Rule 30(b)(6) testimony
and attorney declarations); see also
 Lott v. Westinghouse Savannah
River Co., Inc., 200 F.R.D. 539, 548-49 (D.S.C. 2000) (striking
attorney declarations in support of a motion for class
certification as evidence, but considering the declarations as
legal arguments). Thus, under the witness-advocate rule, proper
consideration of the declarations turns on personal knowledge,
which both Barton and Foye have. 
This case is distinguishable from Bond v. Antero
, 328 F.R.D.
17
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<pageID>
ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
187 (S.D. Ohio 2018), on which Antero relies. In that case, which
also involved class certification based on the language contained
in oil and gas leases, the district court held that summary
spreadsheets were not sufficient to support a finding of numerosity
because they listed all leaseholders in an entire gathering system
without identifying the specific type of lease to which each
leaseholder was a party. Id.
 at 194. Here, in stark contrast,
Exhibit 3 is limited to leases with gas royalty provisions matching
the Mutschelknaus or Matthey Leases that fall within the proposed
class definition (Dkt. No. 101-3 at 5). Moreover, the decision in
Bond
 was related to credibility, not admissibility. 
Much of Antero’s argument turns on its contention that the
contested declarations and exhibits are inaccurate or unreliable.6
6 In particular, Antero argues that Exhibit 3 does not include
all of the relevant lease forms produced by Antero in discovery and 
does not account for relevant lease modifications (Dkt. No. 142 at
2). It argues that Exhibits 22 and 23 are unreliable because they
assume that if one payee signs a lease modification, the entire
lease is modified and not simply that individual payee’s interest.
Id.
 It further argues that the contested exhibits improperly
include a lease to which Rine and Miller are a party that does not
form the basis of their breach of contract claim, thirteen leases
that Antero inadvertently produced in discovery, and eight
duplicated Mutschelknaus leases (Dkt. No. 145 at 7, 8).
18
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<pageID>
ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
Because these arguments speak to credibility, not admissibility,
the Court may weigh the information in these documents, as well as
the entire record and the arguments of both parties, when reviewing
the Plaintiffs’ motion for class certification. 
 Finally, Antero concedes that the Court may consider exhibits
in support of a reply, whether or not they rebut testimony, if it
chooses to do so based on good cause (Dkt. No. 142 at 3).
7 Good
cause exists here because the contested exhibits, based on
documents prepared by Antero, do not present new information or
raise foundational issues,
8 but rather rebut points in the motion
for class certification (Dkt. No. 114 at 8). As such, they are
relevant and need not be excluded.
C. Motion for Class Certification
Before turning to the merits of the Plaintiffs’ motion for
7 Notably, Antero’s argument that Exhibits 22 and 23 should be
stricken as untimely because they were attached to the Plaintiffs’
reply was first made in Antero’s own reply brief (Dkt. No. 145 at
10).
8 The fact that Antero provided Exhibits 7, 8, 22, and 23 in
discovery undermines any argument that the exhibits lack sufficient
foundation. Moreover, Antero does not argue that the exhibits are
not what they purport to be.
19
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<pageID>
ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
class certification, the Court first addresses a threshold question
that Antero has raised in numerous motions and memoranda of law
throughout this litigation. Antero has urged this Court to reject
the Plaintiffs’ primary contention that, based on the leases and
modifications at issue, it has an obligation under West Virginia
law to pay royalties without deducting post-production expenses
(Dkt. Nos. 96-1 at 3, 10 at n.3; 110 at 6-8, 7 at n.6; 97-1 at 3,
12 at n.5; 111 at 4-5, 5 n.1; 130 at 1, 4-5; 133 at 2-3, 114 at 12-
14, 14 n.10; 136 at 24-30, 59; 143 at 2). Indeed, it has
specifically asserted that “the Court must first resolve the
implications of Wellman
 and Tawney for commonality purposes” (Dkt.
No. 114 at 13). 
Antero now advocates that “this deep dive into the merits is
premature” and violates the rule against one-way intervention (Dkt.
No. 143 at 1, 5-7). The Court agrees that it need not answer this
question at this stage in the litigation. Manuel v. Wells Fargo
Bank, Nat. Ass’n, No. 3:14CV238, 2015 WL 4994549, at *1 n.1 (E.D.
Va. Aug. 19, 2015) (noting that “class certification does not ask
about the merits of plaintiff’s claims, but rather determines
20
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<pageID>
ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
whether class certification is appropriate”); see also  Good, 310
F.R.D. at 284 (noting that “[t]he likelihood of the plaintiffs’
success on the merits . . . is not relevant to the issue of whether
certification is proper” (alteration in original) (citation
omitted)).
Antero’s argument, however, serves to underscore that this
case presents two common questions of law and two common questions
of fact, including whether Wellman v. Energy Resources, Inc.
, 557
S.E.2d 254 (W. Va. 2001), and Estate of Tawney v. Columbia Natural
Resources, LLC, 633 S.E.2d 22 (W. Va. 2006), apply to market value
and proceed leases alike. And despite Antero’s contention
otherwise, this question and the others that are discussed in
detail below not only are common to the proposed class, but also
predominate over the fact-intensive question of damages. 
With this perspective in mind, the Court turns to the merits
of class certification.
i. The Proposed Class
The Plaintiffs limit the proposed class to lessors with leases
containing language identical to the Mutschelknaus and Matthey
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<pageID>
ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
Leases, as follows:
Persons and entities, including their
respective successors and assigns, to whom
Antero has paid royalties (“Royalties”) on
Natural Gas, including natural gas liquids,
produced by Antero from wells located in West
Virginia at any time since January 1, 2009,
pursuant to Leases which contain either of the
following gas royalty provisions: (a) [Lessee]
covenants and agrees “to pay monthly Lessors’
proportionate share of the one-eighth (1/8) of
the value at the well of the gas from each and
every gas well drilled on said premises, the
product from which is marketed and used off
the premises, said gas to be measured at a
meter set on the farm”; or (b) “Lessee
covenants and agrees to pay Lessor as royalty
for the native gas from each and every well
drilled on said premised producing native gas,
as amount equal to one-eighth (1/8) of the
gross proceeds received from the sale of the
same at the prevailing price for gas sold at
the well, for all native gas saved and
marketed from the said premises, payable
quarterly.”
The Class excludes: (1) agencies, departments,
or instrumentalities of the United State of
America; (2) publicly traded oil and gas
exploration companies; (3) any person who is
or has been a working interest owner in a well
produced by Antero in West Virginia; and
(4) Antero.
(Dkt. No. 100-1 at 2-3).
22
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<pageID>
ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
ii. Applicable Law
The Plaintiffs have the burden of demonstrating that the
requirements for class-wide adjudication under Rule 23(b)(3) have
been met. Krakauer v. Dish Network, LLC
, 925 F.3d 643, 654 (4th Cir
2019) (citing Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013)).
Under Rule 23(a), the Plaintiffs must first demonstrate that:
(1) the class is so numerous that joinder of all members is
impracticable; (2) there are questions of law or fact common to the
class; (3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class; and (4) the
representative parties will fairly and adequately protect the
interests of the class. Fed. R. Civ. R. 23(a). 
Second, in order to obtain class certification under Rule
23(b)(3), the Plaintiffs must also demonstrate that questions of
law or fact common to the class members predominate over any
questions affecting only individual class members, and that a class
action is superior to other available methods for fairly and
efficiently adjudicating the controversy. Fed. R. Civ. P. 23(b)(3).
Finally, the Plaintiffs must demonstrate that the members of the
23
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<pageID>
ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
class are readily identifiable. EQT Prod. Co. v. Adair , 764 F.3d
347, 358 (4th Cir. 2014).
District courts must perform a “rigorous” analysis to
determine whether the class requirements are met. Gen. Tel. Co. of
Sw. v. Falcon, 457 U.S. 147, 161 (1982). This rigorous analysis
frequently requires an evaluation of the merits of the underlying
claims presented. Wal-Mart Stores, Inc. v. Dukes
, 131 S. Ct. 2541, 
2551-52 (2001).
iii. Rule 23(a) Requirements
The Court next analyzes whether the Plaintiffs have satisfied
the four requirements of Rule 23(a).
1. Numerosity
“[N]umerosity requires that a class be so large that ‘joinder
of all members is impracticable.’” Kay Co., LLC v. EQT Prod. Co.,
No. 1:13-CV-151, 2017 WL 10436074, at *6 (N.D. W. Va. Sept. 6,
2017) (alteration in original) (quoting Fed. R. Civ. P. 23(a)(1)). 
“Impracticable does not mean impossible.” Robidoux v. Celani
, 987
F.2d 931, 935 (2d Cir. 1993). Rather than relying on numbers alone,
courts should examine the specific facts of the case. Gen. Tel. Co.
24
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<pageID>
ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
of the Nw., Inc. v. EEOC, 446 US. 318, 330 (1980). Relevant factors
include “the estimated size of the class, the geographic diversity
of class members, the difficulty of identifying class members, and
the negative impact of judicial economy if individual suits were
required.” Christman v. Am. Cyanamid Co.
, 92 F.R.D. 441, 451 (N.D.
W. Va. 1981); see also  In re Serzone Prods. Liab. Litig. , 231
F.R.D. 221, 237 (S.D. W. Va. 2005) (listing same factors). 
“No specified number is needed to maintain a class action
under [Rule] 23 . . . .” Cypress v. Newport News Gen. &
Nonsectarian Hosp. Ass’n, 375 F.2d 648, 653 (4th Cir. 1967). “When
a class is extremely large, the numbers alone may allow the court
to presume impracticability of joinder.” Hewlett v. Premier Salons,
Int’l, Inc., 185 F.R.D. 211, 215 (D. Md. 1997). Moreover, the
Plaintiffs need not “know precisely the size of the class, rather
it is necessary only to show that the class is so large as to make
joinder impracticable.” McGlothlin v. Connors
, 142 F.R.D. 626, 632
(W.D. Va. 1992) (citations omitted).
Here, the Court readily concludes that the Plaintiffs have
satisfied their burden of demonstrating that the proposed class is
25
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<pageID>
ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
so numerous that “joinder of all members is impracticable.” Fed. R.
Civ. P. 23(a)(1). They have identified approximately 700 proposed
class members whose royalty interests are based on language
identical to the Mutschelknaus and Matthey Leases. Should the Court
later exclude leaseholders who were paid only royalties for
unprocessed gas, there undoubtedly will remain class members so
numerous that joinder is impracticable.
2. Commonality
Rule 23 next requires that “there are questions of law or fact
common to the class.” Fed. R. Civ. P. 23(a)(2). Rule 23(a)(2)’s
commonality requirement, however, “is subsumed under, or superseded
by, the more stringent Rule 23(b)(3) requirement that questions
common to the class ‘predominate over’ other questions.” Amchem
Prods., Inc. v. Windsor, 521 U.S. 591, 609 (1997). Accordingly, the
Court will consider commonality in its discussion of predominance
in Section II.C.iv.1.
3. Typicality
Rule 23 also requires that “the claims . . . of the
representative parties are typical of the claims or defenses of the
26
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<pageID>
ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
class.” Fed. R. Civ. P. 23(a)(3). In other words, “‘a class
representative must be part of the class and possess the same
interest and suffer the same injury as the class members.’”
Lienhart v. Dryvit Sys., Inc.
, 255 F.3d 138, 146 (4th Cir. 2001)
(quoting Falcon, 457 U.S. at 156). But “[t]he class representatives
and class members need not have suffered identical  injuries or
damages.” In re Serzone Prods. Liab. Litig. , 231 F.R.D. at 238
(emphasis added) (citing United Bhd. of Carpenters & Joiners of
Am., Local 899 v. Phoenix Assocs., Inc., 152 F.R.D. 518, 522 (S.D.
W. Va. 1994)). “A plaintiff’s claim may differ factually and still
be typical if ‘it arises from the same event or practice or course
of conduct that gives rise to the claims of other class members,
and if his or her claims are based on the same legal theory.’” Kay
Co., LLC, 2017 WL 10436074, at *9 (quoting Zapata v. IBP, Inc., 167
F.R.D. 147, 160 (D. Kan. 1996)).
Here, the Plaintiffs have satisfied their burden of
demonstrating that the representative parties, Romeo, Rine, and
Miller, are asserting breach of contract claims typical of the
proposed class. Although their claims may differ factually because
27
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<pageID>
ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
gas was extracted from different wells, gas was sold at different
points of sale, gas was transported to different locations, gas was
processed or unprocessed, or Antero took different types of
deductions for post-production expenses, the representative
Plaintiffs’ claims all arise from the same practice or course of
conduct and are based on the same legal theory. Indeed, all of the
breach of contract claims are based on the theory that Antero has
been unlawfully deducting post-production expenses from the
Plaintiffs’ royalty payments. And although the Plaintiffs’ damages
may vary based on the amount and frequency of Antero’s allegedly
unlawful deductions, “[t]he class representatives and class members
need not have suffered identical
 injuries or damages.” In re
Serzone Prods. Liab. Litig. , 231 F.R.D. at 238 (citing Phoenix
Assocs., Inc., 152 F.R.D. at 522). 
4. Adequacy of Representation
Rule 23 requires that “the representative parties will fairly
and adequately protect the interests of the class.” Fed. R. Civ. P.
23(a)(4). This determination involves a two-pronged inquiry: “(1)
whether class counsel are qualified, experienced, and generally
28
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<pageID>
ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
able to conduct the proposed litigation; and (2) whether the
representative’s claims are sufficiently interrelated to and not
antagonistic with the class’s claims as to ensure fair and adequate
representation.” Hewlett
, 185 F.R.D. at 218 (citing Buford v. H &
R Block, Inc., 168 F.R.D. 340, 352 (S.D. Ga. 1996)). The latter
inquiry “serves to uncover conflicts of interest between named
parties and the class they seek to represent.” Windsor
, 521 U.S. at
625.
Here, the Plaintiffs have satisfied their burden of
demonstrating adequacy for two reasons. First, because Antero did
not challenge the competency of Plaintiffs’ counsel, the Court
presumes they are “competent and sufficiently experienced to
prosecute vigorously the action on behalf of the class.” Hewlett
,
185 F.R.D. at 218 (citing Zapata, 167 F.R.D. at 161). 
Second, the interests of the proposed class representatives,
Romeo, Rine, and Miller, do not conflict with those of the proposed
class members. Despite Antero’s claim that Rine and Miller have
conflicting remedial interests because they have environmental
concerns and “are not interested in maximizing royalties” (Dkt. No.
29
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<pageID>
ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
114 at 23 n.23), the proposed class representatives seek the same
type of relief based on the same theory of the case. They seek
compensatory damages, plus interest, for their breach of contract
claims (Dkt. No. 31 at 13-14). Indeed, they seek no environmental
relief. Id.
 Accordingly, the proposed class representatives’ claims
are “sufficiently interrelated to . . . ensure fair and adequate
representation.” Hewlett
, 185 F.R.D. at 218 (citing Buford , 168
F.R.D. at 352). 
iv. Rule 23(b) Requirements
The Court turns now to whether the Plaintiffs have satisfied
the requirements of Rule 23(b)(3).
1. Predominance
A class action can be maintained under Rule 23(b)(3) if “the
court finds that the questions of law or fact common to class
members predominate over any questions affecting only individual
members, and that a class action is superior to other available
methods for fairly and efficiently adjudicating the controversy.”
Fed. R. Civ. P. 23(b)(3). “The predominance inquiry ‘tests whether
proposed classes are sufficiently cohesive to warrant adjudication
30
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ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
by representation.’” Lienhart , 255 F.3d at 147 (quoting Amchem
Prods., Inc. , 521 U.S. at 623). Thus it “focuses on whether
liability issues are subject to class-wide proof or require
individualized and fact-intensive determinations.” Singleton v.
Domino’s Pizza, LLC, 976 F. Supp. 2d 665, 677 (D. Md. 2013) (citing 
Cuthie v. Fleet Reserve Ass’n , 743 F. Supp. 2d 486, 499 (D. Md.
2010)).
“Deciding whether common questions predominate over individual
ones involves a qualitative, rather than quantitative, inquiry.”
Id.
 (citing Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 429
(4th Cir. 2003)). Critically, “[c]ommon liability issues may still
predominate even when individualized inquiry is required in other
areas.” Good
, 310 F.R.D. at 296 (citing Gunnells, 348 F.3d at 429).
“At bottom, the inquiry requires a district court to balance common
questions among class members with any dissimilarities between
class members.” Id.
 (citing Gunnells, 348 F.3d at 427-30). 
Conducting the requisite balancing test here, the Court
readily concludes that the common questions of law and fact
presented in this case far outweigh the dissimilarities in damages
among class members that likely will require individualized
31
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ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
inquiries. Indeed, this case presents four common questions of law
and fact:
(1) Do Wellman  and Tawney  apply to both market value
and proceed leases? 
(2) If so, do the leases at issue, as modified by any
subsequent modifications (if any), have the
specific language required by Wellman
 and Tawney
that would allow Antero to deduct post-production
expenses from the Plaintiffs’ royalty payments?
(3) If not, did Antero unlawfully deduct post-
production expenses from the Plaintiffs’ royalty
payments?
(4) If so, how did Antero calculate these deductions?
Of these common questions, the first three are strictly
limited to liability. If the answer to the first question is no, as
Antero has repeatedly insisted, it may not be liable for unlawfully
deducting post-production expenses. But if the answer is yes, the
next common question is whether the leases at issue include the
specific language required by Wellman
 and Tawney that would allow
Antero to lawfully deduct post-production expenses from the
32
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<pageID>
ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
Plaintiffs’ royalties. If they do, no liability would follow. But
if they do not, the next common question is whether Antero took
deductions; if it did not, no liability would follow. But if Antero
took deductions impermissibly, the next question is how did it
calculate these deductions, and what damages has each class member
suffered?
Antero has effectively conceded that it uses the same method
to calculate its deductions for post-production expenses: “Antero
states that the method for calculating the value of the gas at the
well and the net value at the factory of the manufactured products,
includings NGLs, is the same for [the] Plaintiffs and all
Mutschelknaus/Matthey Putative Class Members . . . .” (Dkt. No.
101-16 at 7). Indeed, it describes the “method,” not methods, and
states that it is “the same” for the named plaintiffs and putative
class members. Id.
 Antero’s subsequent qualification demonstrates
only that, while it uses the same method to calculate deductions
for post-production expenses, “the calculation itself is
individualized and does not yield the same results for each
Plaintiff or Mutschelknaus/Matthey Putative Class Member because
there are a number of variables integral to the methodology that
33
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<pageID>
ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
make each calculation unique.” Id. at 7-8. In other words, although
Antero employs the same method to calculate its deductions, that
method produces different results (i.e., damages).
But “[c]ourts in every circuit have uniformly held that the
[Rule] 23(b)(3) predominance requirement is satisfied despite the
need to make individualized damage determinations . . . .” Kay Co.,
LLC, 2017 WL 10436074, at *11 (citations omitted). And conducting
the necessary balancing test, it is clear that “[t]he common
questions discussed above predominate” and answering these
questions “will largely dispose of this litigation.” Id.
 at 12.
Tellingly, “[n]umerous courts in [this and] other jurisdictions
have certified class actions involving claims arising from natural
gas leases, the royalties paid under such leases, and/or the
deductions taken from such royalty payments, among other related
issues.” Id.
 (compiling cases).
Although Antero contends different modifications affect the
leases at issue, the Court need only address the specific lease
language if it answers the first common question in the
affirmative. If there are various lease modifications, these leases
can be divided and evaluated in subclasses. See
 id. at 13 (noting
34
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<pageID>
ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
that, if necessary, the court can evaluate different leases in
subclasses). If the Court proceeds to the second common question,
the leases, even as modified, “[e]ither . . . satisf[y] the Tawney
standard or [they] do[] not,” which is strictly a question of law.
Id.
 In sum, the four common questions of law and fact listed above
predominate over the uncommon question of damages suffered by the
Plaintiffs.
2. Superiority
Rule 23(b)(3) also requires that the proposed class action be
superior to other methods of adjudication so that the class action
will “‘achieve economies of time, effort, and expense, and promote
. . . uniformity of decision as to persons similarly situated,
without sacrificing procedural fairness or bringing about other
undesirable results.’” Windsor
, 521 U.S. at 615 (quotation
omitted). When determining whether a class action is superior under
Rule 23(b)(3), courts consider four relevant guidelines:
(A) the class members’ interests in
individually controlling the prosecution or
defense of separate actions;
(B) the extent and nature of any litigation
concerning the controversy already begun by or
against class members;
35
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<pageID>
ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
(C) the desirability or undesirability of
concentrating the litigation of the claims in
the particular forum; and
(D) the likely difficulties in managing a
class action.
Fed. R. Civ. P. 23(b)(3)(A)-(D); see also
 Hewlett, 185 F.R.D. at
220 (noting that these subsections are “guidelines”). 
Here, Antero contends that the Plaintiffs have not established
superiority because (1) they have not demonstrated that anyone else
wants to join this class action; (2) there are no barriers to
individual litigation; (3) other plaintiffs are already pursuing
the same breach of contract claims involving the same leases; (4)
this is a local matter governed by West Virginia substantive law;
and (5) a class action would be unmanageable (Dkt. No. 114 at 24-
25). Each claim is unavailing.
First, Rule 23 does not require the Plaintiffs to
affirmatively show that proposed class members want to join the
class action. See
 Fed. R. Civ. P. 23. Nor does Rule 23 require
barriers to individual litigation. Id.  Rather, it requires only
that the class be “so numerous that joinder of all members is
impracticable.” Fed. R. Civ. P. 23(a)(1). As discussed earlier,
36
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<pageID>
ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
that requirement is easily satisfied here. See  supra  Section
II.C.iii.1.
Second, “the interest in personal control of the litigation is
minimal in this context.” Soutter v. Equifax Info. Servs., LLC, 307
F.R.D. 183, 218 (E.D. Va. Apr. 15, 2015) (citation omitted). This
is particularly so where, as here, the alleged injuries stem from
the same course of conduct and raise the same legal and factual
questions. See
 White v. Imperial Adjustment Corp., No. 99–CV–3804,
2002 WL 1809084, at *14 (E.D. La. Aug. 6, 2002) (“Where, as here,
the focus of the proceeding will be the alleged course of conduct
of the defendants in conscious disregard of the consumers’ rights,
the purpose of which is to determine whether statutory and punitive
damages are due, the interest in personally controlling the
litigation is small.”). Moreover, the fact that only 11 of
approximately 700 class members have already pursued their own
breach of contract claims against Antero supports the conclusion
that there is little interest in individual litigation. See
Gunnells v. Healthplan Servs., Inc., 348 F.3d 417, 425 (4th Cir.
2003) (noting that there was no great deal of interest in
individual litigation when, of 1400 potential class members, “there
37
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<pageID>
ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
was a ‘dearth of individual cases filed until now’”). In addition,
“[t]o the extent any individual does wish to retain control, . . .
the opt-out mechanism will be available.” Soutter
, 307 F.R.D. at
218.
Third, although 11 proposed class members have already elected
to individually pursue their breach of contract claims against
Antero, this fact, alone, does not weigh against class
certification when the proposed class includes approximately 700
members. See
 Fed. R. Civ. P. 23(b)(3)(B) (requiring court to
consider “the extent and nature of any litigation concerning the
controversy already begun by or against class members”). Indeed,
these cases have already been consolidated for discovery purposes
because they “involve common questions of law and fact” (Civil
Action No. 1:18cv30, Dkt. No. 32 at 1). 
Fourth, allowing the remaining members of the proposed class
to pursue a class action “serves the interest of judicial economy.”
Thomas v. FTS USA, LLC
, 312 F.R.D. 407, 426 (E.D. Va. Jan. 7,
2016). “It saves time and resources to resolve the issues presented
on a class-wide basis rather than to” resolve several hundred
motions for summary judgment “on the same issues.” Id.
 In other
38
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<pageID>
ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
words, there is a strong desirability to concentrate the litigation
of these claims in this Court for “consolidated resolution of the
common issues.” See
 Fed. R. Civ. P. 23(b)(3)(C) (requiring courts
to consider “the desirability or undesirability of concentrating
the litigation of the claims in the particular forum”); see also
Soutter, 307 F.R.D. at 218 (“[E]ven if just a fraction of the class
members were to bring individual suits, the adjudication of the
common issues in a single proceeding would be more efficient than
the separate adjudication of individual claims.” (citation
omitted)).
Finally, “the similarity of factual and legal issues indicates
that a class action would be manageable . . . .” See
 Fed. R. Civ.
P. 23(b)(3)(D) (requiring courts to consider “the likely
difficulties in managing a class action”). Tellingly, Antero does
not explain why this class action would be unmanageable under the
circumstances (Dkt. No. 114 at 25). Nor could it. As previously
discussed, this case presents four common questions of law and fact
that predominate over the individualized question of damages. See
supra Section II.C.iv.1. Answering these common questions in one
class action will not only be manageable, but also more efficient.
39
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<pageID>
ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
In sum, the Plaintiffs proposed class action is far superior to
individual litigation.
3. Ascertainability
Although not specifically required, the Fourth Circuit has
“repeatedly recognized that Rule 23 contains an implicit threshold
requirement that the members of a proposed class be ‘readily
identifiable.’” Adair
, 764 F.3d at 358 (citations omitted). This
implied rule has regularly been described “as an ‘ascertainability’
requirement.” Id.
 (citations omitted). “However phrased, the
requirement is the same. A class cannot be certified unless a court
can readily identify the class members in reference to objective
criteria.” Id.
 (citations omitted). “The plaintiffs need not be
able to identify every class member at the time of certification.”
Id.
 “But if class members are impossible to identify without
extensive and individualized fact-finding or mini-trials, then a
class action is inappropriate.” Id.
 (cleaned up) (citations
omitted).
Here, the Plaintiffs’ proposed class is readily identifiable,
and Antero’s claims otherwise lack merit. To start, the proposed
class is limited to “[p]ersons and entities, including their
40
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<pageID>
ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
respective successors and assigns, to whom Antero has paid
royalties . . . on Natural Gas . . . .” (Dkt. No. 100-1 at 2-3
(emphasis added)). Although Antero claims that its “summary royalty
reports” are limited to current payees and that it cannot identify
former royalty owners “without resort[ing] to public title
records,” these claims are simply belied by the evidence (Dkt. No.
114 at 7). 
Indeed, Antero’s Rule 30(b)(6) witness, Alvyn Schopp,
confirmed during his deposition that its summary royalty reports
are a summary of all
 payments from 2010 to 2018 (Dkt. No. 101-8 at
22). He also confirmed that the summary royalty reports identified
payees by payee number, and that Antero’s accounting system
maintains information about royalty calculations and payments. Id.
at 20-21. Moreover, Phil Yoo, an Antero employee in charge of its
accounting department, confirmed that Antero maintains electronic
information of all royalty payments it has made to payees since
2010, even though that information spans two different accounting
systems: Excalibur (2010 to 2013 or 2014) and Enertia (2013 or 2014
to present) (Dkt. No. 119-5 at 4). In other words, although Antero
has not yet identified the potential class members by name, it
41
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<pageID>
ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
maintains accounting information that makes them readily
identifiable, thereby satisfying Rule 23’s implicit requirement.
4. Definition and Appointments
For the reasons discussed, the Court will certify the
following class:
Persons and entities, including their
respective successors and assigns, to whom
Antero has paid royalties (“Royalties”) on
Natural Gas, including natural gas liquids,
produced by Antero from wells located in West
Virginia at any time since January 1, 2009,
pursuant to Leases which contain either of the
following gas royalty provisions: (a) [Lessee]
covenants and agrees “to pay monthly Lessors’
proportionate share of the one-eighth (1/8) of
the value at the well of the gas from each and
every gas well drilled on said premises, the
product from which is marketed and used off
the premises, said gas to be measured at a
meter set on the farm”; or (b) “Lessee
covenants and agrees to pay Lessor as royalty
for the native gas from each and every well
drilled on said premised producing native gas,
as amount equal to one-eighth (1/8) of the
gross proceeds received from the sale of the
same at the prevailing price for gas sold at
the well, for all native gas saved and
marketed from the said premises, payable
quarterly.”
The Class excludes: (1) agencies, departments,
or instrumentalities of the United State of
America; (2) publicly traded oil and gas
exploration companies; (3) any person who is
42
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<pageID>
ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
or has been a working interest owner in a well
produced by Antero in West Virginia; and
(4) Antero.
(Dkt. No. 100-1 at 2-3). The Court further excludes from this class
any royalty interest owner who has never had their royalty payments
reduced by Antero for their related share of post-production
expenses. The Court also excludes any person involved in related
litigation, pursuing the same claim, against the same defendant,
based on the same facts and circumstances.
Next, the Court appoints Romeo, Rine, and Miller to serve as
class representatives because their claims are typical of the class
as required by Rule 23(a)(3), and they will fairly and adequately
protect the interests of the class as required by Rule 23(a)(4).
And considering the requirements of Rule 23(g)(1)(A), the Court
concludes that Larry Lee Javins, II, George A. Barton, and Howard
M. Persinger, III are knowledgeable and experienced in class action
litigation, making them well qualified to represent the Plaintiffs
(Dkt. Nos. 101-3, 101-17, 101-18). Accordingly, the Court appoints
Larry Lee Javins, II, George A. Barton, and Howard M. Persinger,
III as class counsel. 
43
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<pageID>
ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
III. CONCLUSION
For the reasons discussed, the Court:
• DENIES Antero’s motions to exclude (Dkt. Nos. 96, 97);
• DENIES Antero’s motion to strike (Dkt. No. 142);
• GRANTS the Plaintiffs’ motion for class certification (Dkt.
No. 100);
• CERTIFIES this case as a class action pursuant to Rule
23(b)(3);
• APPOINTS Romeo, Rine, and Miller as class representatives;
• APPOINTS Larry Lee Javins, II, George A. Barton, and Howard M.
Persinger, III as class counsel pursuant to Rule 23(g);
• ORDERS class counsel to submit a proposed Notice of
Certification to the defined class to be mailed to members of
the class in accordance with Rule 23(c)(2)(B) within 30 days
of the date of this Order;
• SCHEDULES a status conference by telephone for Tuesday, April
21, 2020, at 12:15 P.M., to further schedule the case; and
• DIRECTS lead counsel for the Plaintiffs to arrange the
conference call and provide dial-in information to all parties
44
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<pageID>
ROMEO, ET AL. V. ANTERO      1:17CV88
MEMORANDUM OPINION AND
ORDER DENYING MOTIONS TO EXCLUDE 
[DKT. NOS. 96, 97], DENYING MOTION TO STRIKE
[DKT. NO. 142], GRANTING MOTION FOR CLASS CERTIFICATION
[DKT. NO. 100], CERTIFYING THE CLASS, APPOINTING CLASS
REPRESENTATIVES AND COUNSEL, AND SCHEDULING A STATUS CONFERENCE
and the Court, by email to candace_levitsky@wvnd.uscourts.gov,
by Friday, April 17, 2020.
It is so ORDERED.
The Court DIRECTS the Clerk to transmit copies of this
Memorandum Opinion and Order to counsel of record.
DATED: March 23, 2020.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
45
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